ECCC Reparations

This blog is designed to serve as a repository of analyses, news reports and press releases related to the issue of RERAPATIONS within the framework of the Extraordinary Chambers in Courts of Cambodia (ECCC), a.k.a. the Khmer Rouge Tribunal.

Monday, October 28, 2013

Closing Statements: Civil Parties

Closing Statements: Civil Parties



There is no doubt that the social restructuring undertaken during Democratic Kampuchea caused tremendous hardship to many. The levels of hardship varied and depended on a multitude of factors. Where on the spectrum of that hardship the individuals recognized as civil parties in Case 002/01 fall will never be known as a matter of adjudicated fact because the Trial Chamber denied the accused their right to confront witnesses against them by declaring civil parties non-witnesses while letting them testify in court (and we are now left to the civil party lawyers’ word that “civil parties do not lie” as the sole source of comfort in this regard). This placed the civil parties in Case 002/01 in a very odd participation format utterly alien to the Cambodian judicial process. What the creation of this format resulted in is the civil parties running a truth-and-reconciliation-like operation on the sidelines of a criminal process. This format had much foreboding to be fraught with all sorts of disorientation and confusion, within and without, the foreboding which has proven prescient.


The civil party lawyers opened with a statement on the “long wait for justice” their clients had experienced. It is hard to imagine what long wait for justice the civil party lawyers are referring to. Pol Pot and Ieng Sary were prosecuted a mere 8 months after their government was deposed by the Vietnamese in January, 1979. They were convicted and with them the entire essence of the Democratic Kampuchea government (which was labeled as 'communism gone astray' or not 'real communism'). Following that trial Democratic Kampuchea has been vilified on numerous venues and year after year by the Vietnam-installed government that remains in power today. While the lure of the dramatic to say that the civil parties have been waiting for justice for some 30 years is understandable, for the sake of historical truth it is important to note that Democratic Kampuchea (whereas Pol Pot and Ieng Sary were on trial, it was not those specific individuals that the Vietnamese sought to prosecute, but Democratic Kampuchea as a government) was prosecuted immediately after its fall and justice was delivered swiftly (legal minds might argue about the quality and politicization of that justice but there can be no argument that it was delivered expeditiously). Following that process, the civil parties have lived in a society where the Democratic Kampuchea government was universally and sternly condemned (those of you who have read the contemporaneous statements on the subject will appreciate what I mean by 'sternly condemned') and equated with absolute evil (this is unless in the 1980s some of the civil parties lived in Democratic Kampuchea enclaves which I have no reason to believe any of them did). As such, “long wait for justice” goes beyond a mere hyperbole – it is simply not true: What took place during Democratic Kampuchea was dealt with quickly after the Vietnamese invasion and has been consistently condemned throughout the past 34 years of the reign of the Vietnam-installed regime. Thus, provided some or all of the civil parties in fact are victims of Democratic Kampuchea, their victimhood has been recognized universally in their country and as part of the population that lived through Democratic Kampuchea.


The civil party lawyers proceeded by telling us that the fact that Democratic Kampuchea sought to make “everyone equal” would “[destroy] the fundamental character of Cambodian society.” This is a much unexpected statement. Are we to understand that the civil party lawyers believe that equality and egalitarianism are so inimical to Cambodian society that if they were to be introduced – even if forcefully – they would have the effect of destroying that society’s fundamental character (or what we routinely call ‘the fiber of society’ in this language)? I am not trying to get at whether this is true (which would be a much more difficult exercise) but merely to whether this is what the civil party lawyers are saying.


The civil party lawyers looked to dramatize further by stating that their clients had “witness[ed] torture and killing of their relatives.” Towards the end of their statement the civil party lawyers conceded that none of their clients – or any other witnesses – testified to witnessing an execution (but they argued that the testimony of before and the fact of non-reappearance after inexorably compel the only conclusion of an execution happening in-between). These are mutually exclusive statements. There is no doubt that people were executed during Democratic Kampuchea; there is a judicial finding to this effect in Case 001 which tells us that the contention of execution of S-21 prisoners has been judicially ascertained. This previously adjudicated fact does not compel a conclusion that the Case 002 relatives – none of whom were S-21 prisoners – were necessarily executed. Whether they were or not, the civil party lawyers cannot have it both ways: They cannot admit that none of the civil parties or other witnesses (I will proceed calling civil parties witnesses regardless of the Trial Chamber's most bizarre distinction between the two) testified to witnessing an execution and at the same time to assert that their clients suffered from witnessing the killing of their relatives. Whatever the civil parties’ legitimate grievances are, they have to decide whether they witnessed an execution or an act of torture or not and instruct their lawyers accordingly.


Throughout their closing argument the civil party lawyers made numerous statements as to historical facts that both lie outside the jurisdiction of the Court and to which the civil party lawyers are not in any way qualified to speak (it would be different if the civil party team had a legitimate historian, as most other teams did, in their midst but they did not). One of such statements was that “under the Lon Nol regime people lived in harmony.” Let’s see. There was a civil war on. Then there was a spillover of the Vietnamese civil war into Cambodia. Then there was the slaughter of ethnic Vietnamese (Democratic Kampuchea did not pioneer that, contrary to the popular belief and one would wonder where that belief came from but that is a story for another day). But aside from these, there was harmony. Another such statement is that the Khmer Rouge, as a guerilla movement, attracted the population due to “some mistakes of the Lon Nol government.” This is a great example of potted history that is at the level of grammar school, not a court of law that has had the benefit of hearing testimony of most of the best experts on the movement. Yet another one is the civil party lawyers’ assertion that the accused’s argument that the evacuation of Phnom Penh was necessary for reason of food and physical security was a canard and that the leaders of Democratic Kampuchea understood that it was. While I am aware that many have tried to get there through the powers of deduction, I am not aware of any documentary or testimonial evidence that attests to this. Further on the evacuation of Phnom Penh, the civil party lawyers – none of whom, to my knowledge, ever worked at policy level in a contingency environment – impart a policy opinion that “the evacuation should not have been done quickly and coercively.” I wonder if any of the civil party lawyers have ever experienced what is known in the English-speaking world as ‘ordered departure?’ Perhaps, not, because if any of they had, they probably would have enlightened the others that there is not much of leisurely pace or freedom to make independent decisions when that happens (with that said, Western governments have more or less clear standards for when this is to be ordered but once it is ordered there is no discussion of everyone’s individual schedule, convenience or preferences). What would have been legitimate to discuss is whether mass evacuation ordered by the State is lawful. This is what lawyers do; they do not impart their opinions in court on whether a lawful measure was prudent policy. Yet another one is “livelihood was better” under the Lon Nol government. For people in Phnom Penh -- no doubt but the civil party lawyers are forgetting that foreign assistance was how that was achieved, not local production, and Democratic Kampuchea sought sustainable development (not within the modern meaning of 'sustainability' which has come to mean 'donor commitment for an extended period of time' or 'a diversified donor base' but actual sustainability: One consumes what he produces).


The civil party lawyers also delivered curious opinions as to certain arrangements during Democratic Kampuchea. For instance, they referred to the living conditions of the countryside, as seen by the evacuated urbanites, as degrading. Well, there is no doubt that conditions were harsh and remain harsh today. However, there is also no doubt that selling rice is a lot easier than growing it. People who were selling rice (urbanites) were brought to experience the life of those who were growing it (denizens of rural areas). They had a very hard time. The civil party lawyers tell us that those conditions were manufactured to bring the maximum amount of suffering on the urbanites. Maybe they were (although there is much doubt that anyone would bother to manufacture conditions of anything in the midst of a war, although I have seen plenty of evidence of the rural population’s resentment of the urbanites (who were perceived as rich and stuck-up) that did not conduce to a particularly warm welcome when the latter arrived in upcountry) but where is the evidence of that? Another one of these curious opinions is the civil party lawyers’ contention that “a communist revolution is not a crime per se.” I do not know what heights of knowledge of communism the civil party lawyers are speaking from but what I know about communist revolutions is that they are by definition a violent overthrow of the established order to bring about dictatorship of the proletariat and poor peasantry. Violent overthrow of the constitutional order is a crime in most jurisdictions I am familiar with. This makes the declaration that “a communist revolution is not a crime per se” most curious to say the least. Perhaps, my favorite – although it is hard to pick one – was the following opinion of the civil party lawyers: “The objective of [the evacuation of Phnom Penh] was not humanitarian but was to build up the country and to increase the rice production.” Well, if this was not a humanitarian objective, then the opposite of it will ipso facto be a humanitarian objective. Let’s see if it is: Leaving the country in ruin of the war and either leaving the rice production unchanged and therefore continue relying on foreign aid to feed the population or purposely decreasing it. Does this sound like a humanitarian objective?


The civil party lawyers dazzled us with another rare gem: What happened is a genocide, even though they admit that in Case 002/01 none of the accused (there were 4 when all this started) were charged with genocide. It is kind of like the Genocide Museum: The Vietnamese said that what happened was a genocide and this is what the museum should be called before any inquiry at all took place.  


The civil party lawyers have displayed consistent disregard for the evidence. This is manifest from the following statements: (1) “Toul Po Chrey defines the regime” (How?); (2) “Noun Chea, finally, admitted he was #2 (When did this happen? The only statements of his I am familiar with are that he was at the same level as Pol Pot and that one did not subordinate to the other; #2 presumes subordination); (3) the identical words used by the civil parties are in and of themselves proof that their statements are true (Is it usual that people describe the same events in the exact same words? No, it is not. What is usual is that they repeat what they have been told about an event in the same words, i.e. I and someone else are far more likely to describe an event in the same words if we see it on CNN than if we experience it firsthand; that is because someone already put that event into words for us and we are merely repeating them); (4) every book on the subject says the exact same thing (not correct; Vickery’s Cambodia does not; the civil party lawyers’ mentioning it as an exception -- if this is how they see it -- would have granted their statement credence; as it is, their assertion of the position of those books being “incontrovertible and uncontestable” is simply incorrect and disingenuous as there is absolutely no doubt that at least one of the civil party lawyers were aware of Vickery’s book).        


Throughout their statement the civil party lawyers lamented the accused’s exercise of their right to remain silent. They went as far as to say that rights can be abused by rights-holders by exercising them. This is the absolute top-tier nonsense I have heard after years in rights. It is so outrageously arrant that commenting on it is a waste of effort. Yet, when it came to the rights of civil parties, the civil party lawyers stated that the civil parties had sought to exercise their rights at every stage of the proceedings. So, the logic here goes this way: It is commendable when the civil parties exercise their rights, even though their participation in the process is a choice; it is, on the other hand, not okay when the accused exercise their rights, even though their participation in the process is compelled by the State. Why would anyone have a problem with this logic? I cannot imagine. From this, the civil party lawyers launched into how the accused let the civil parties down for the latter will never have an answer to the perennial question ‘why.’ Well, maybe if the creation of this Court had been a result of popular consultation, the people would have decided to have something similar to a truth commission. But, the creation of the Court came out of the 1997 coup d’état and was nothing more than Prince Ranariddh’s way of foreswearing his Democratic Kampuchea buddies; when that was no longer an issue the wheels of the UN had already been set in motion and they kept grinding, inching over to a process. As a result, the originally requested criminal process was created, with some modifications. Now the civil parties are miffed at the accused for choosing silence when the appropriate person to be miffed at is the Cambodian government that created a process through which the civil parties are finding out about things they do not care to know about (all the law sounds like ‘blah, blah, blah’ to an average person – sad but true) and cannot find out what they do care about (such as what happened to a relative, for example). I would have to agree with the defense on this: This is not a conference, nor is this an ICRC search database; the accused here are on trial for what is left of their lives and they are only expected to defend themselves by all lawful means available to them.


In the last portion of their statement the civil party lawyers addressed the issue of reparations. I will be first to admit that the issue of reparations is the hardest at the Court and we have the judges to thank for this. From the outset, the ECCC judges were not particularly keen on following the Cambodian law. They decided to unlawfully replace it with a Frankenstein monster that has been walking and talking … well … like a Frankenstein monster since then. This unlawful modification hit the reparations – the ultimate purpose of civil party participation under Cambodian law – particularly hard and turned them into a stillborn project. Now the civil parties, yet again, struggled to stay within the confined of judge-made-up law (this is not judge-made law because these judges have no authority to make law). Their proposals are an easy target (just like the proposals of their counterparts in Case 001 were) but it would be fair to admit that they are not working with very much here. And so they opened with a statement that traditional reparations must be awarded against the accused (or the civilly responsible person). I have no trouble with this at all. Both of the accused own some sort of property that can be seized in the event of their convictions and shared between the civil parties. Not all Cambodians who lived through Democratic Kampuchea but only those who were recognized as the civil parties for the purposes of Case 002/01. Now, is it possible that after it is all said and done each civil party would get somewhere in the neighborhood of $200? It sure is. Is it a large amount given the crimes charged? It sure is not. But, any process can only make awards to the extent of the convicted or civilly responsible person’s assets, not beyond them. The civil party lawyers said something about the Trial Chamber ruling against personal reparations in Case 001. That ruling is superfluous as the judge-made-up law is clear on the matter – no personal reparations allowed. Then the civil party lawyers proposed that reparations be ordered to then be paid by third parties (not ordered against third parties). This is where I part company with the civil party lawyers as, if I understand their design correctly, this is what they are proposing: The accused pay to the extent of their property, with the remainder being raised from the governments of the developed world. The developed world owes Cambodia nothing and it most definitely does not owe it reparations for the acts committed by Cambodians against other Cambodians (the payment of reparations always presumes guilt and the developed world bears no responsibility for the Khmer Rouge circa 1970s, other than the speculation that the US might be indirectly responsible for driving the populations of bombardment-affected areas to the Khmer Rouge cause). Now what? The civil party lawyers decided to dazzle the room with a cornucopia of projects (they are of 3 types: rememberance, rehabilitation and documentation). They do not request that a single dollar be contributed to any of these projects by the Cambodian government (the foreigners of the developed world will, yet again, foot the bill) and the Court will be in no position to order any of them (the only position the Court can have on them is … 'ah … someone is paying for this … hmmm … okay, go ahead and do it if you wish but we have nothing to say about this,' with the Court's certification of any of these projects being completely meaningless). Why did the civil party lawyers bring these projects to the Chamber then? They got me there. I will not comment on any of these projects that range from book writing to exhibits to memorials but on one: A remembrance day. The civil parties believe that it will be a wonderful opportunity for people to get together and, best of all, it costs absolutely nothing. Well, that is because none of the civil party lawyers ever ran a business and are therefore blind to the debilitating effect the extraordinary amount of holidays has on business in Cambodia as it is. But it is understood that the survival of the small business in Cambodia is as far from the civil party lawyers’ thinking as anything can be. But, if it is the Cambodian government's convenience that was the apple of the civil party lawyers’ eye, then, it is very true it will cost the Cambodian government nothing. None of these projects will (the Cambodian government has no trouble at all finding millions of dollars every year to buy its senior civil servants the most exquisite of SUVs but it never has any money for book writing or plaques).


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